| People v Kelley |
| 2012 NY Slip Op 00587 [91 AD3d 1318] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnKelley, Appellant. |
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered July9, 2009. The judgment convicted defendant, upon a nonjury verdict, of burglary in the thirddegree and criminal mischief in the fourth degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him, after a nonjury trial, ofburglary in the third degree (Penal Law 140.20) and criminal mischief in the fourth degree (145.00 [1]), defendant contends that County Court erred in refusing to suppress his statements tothe police because, inter alia, he was subjected to custodial interrogation and thus Mirandawarnings were required. We reject that contention. In determining whether a defendant was incustody for Miranda purposes, "[t]he test is not what the defendant thought, but rather what areasonable [person], innocent of any crime, would have thought had he [or she] been in thedefendant's position" (People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970])."[T]he court 'should consider: (1) the amount of time the defendant spent with the police, (2)whether his freedom of action was restricted in any significant manner, (3) the location andatmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited bythe defendant, (5) whether he was apprised of his constitutional rights, and (6) whether thequestioning was investigatory or accusatory in nature' " (People v Lunderman, 19 AD3d 1067,1068-1069 [2005], lv denied 5 NY3d 830 [2005]). In addition, "[t]he determination of asuppression court must be accorded great weight 'because of its ability to observe and assess thecredibility of the witnesses[,] and its findings should not be disturbed unless clearly erroneous' "(People v Jones, 9 AD3d 837, 838-839 [2004], lv denied 3 NY3d 708 [2004], 4 NY3d 745[2004]). Here, defendant was questioned for a maximum of 20 minutes in his sister's home, ratherthan at a police station, and there is no evidence indicating that his freedom of movement wasrestricted in any way. Indeed, the evidence at the suppression hearing established that defendantwas moving around within the room and changed his shirt while the police spoke with him, andthat his brother and sister were present in the same room during the questioning. "Although thequestioning . . . may have been accusatory, that fact alone did not render the interrogationcustodial in nature" (People v Davis, 48 AD3d 1086, 1087 [2008], lv denied 10 NY3d 861[2008]; see generally Lunderman, 19 AD3d at 1068-1069). Consequently, the court properlyconcluded that defendant was not in custody for Miranda purposes. We have considereddefendant's remaining contention with respect to the suppression ruling and conclude that it iswithout merit. Defendant failed to move for a trial order of dismissal, and thus he failed to preserve forour review his further contention that the conviction is not supported by legally sufficientevidence (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19[1995]). In any event, that contention lacks merit (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Present Smith, J.P.,Fahey, Carni, Sconiers and Gorski, JJ.